Shute v. State

Court of Criminal Appeals of Alabama

Shute v. State

555 So. 2d 273, 1989 Ala. Crim. App. LEXIS 675, 1989 WL 112195

CourtCourt of Criminal Appeals of Alabama

DecidedJuly 21, 1989

Docket1 Div. 982

StatusPublished

This text of 555 So. 2d 273 (Shute v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shute v. State, 555 So. 2d 273, 1989 Ala. Crim. App. LEXIS 675, 1989 WL 112195 (Ala. Ct. App. 1989).

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Opinion

TAYLOR, Presiding Judge.

Clarence Edward Shute, Jr., was convicted of possession of pentazocine and was sentenced to 99 years’ imprisonment in May of 1984. We affirmed in Shute v. State, 469 So.2d 670 (Ala.Cr.App.1984), and certiorari was denied.

Shute petitioned for post-conviction relief, pursuant to Rule 20, A.R.Crim.P. Temp., in January, 1989. He claimed that he was unlawfully sentenced under the Habitual Felony Offender Act to 99 years. The petition was denied, hence this appeal.

The appellant contends that he is due to be resentenced on the basis of the principle enunciated in Ex parte Chambers, 522 So.2d 313 (Ala.1987). He had five prior drug convictions and was sentenced to 99 years under the Habitual Felony Offender Act. It is clear, however, that he could have been sentenced only under the Controlled Substances Act. The state concedes this in its brief and requests that this case be remanded for a new sentencing proceeding in accordance with § 20-2-76, Code of Alabama 1975.

On the motion, therefore, of both the appellant and the appellee, the present sentence in this case is set aside and this case is remanded to the circuit court for resen-tencing.

REMANDED FOR RESENTENCING.

All the Judges concur.

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TAYLOR, Presiding Judge.

Clarence Edward Shute, Jr., was convicted of possession of pentazocine and was sentenced to 99 years’ imprisonment in May of 1984. We affirmed in Shute v. State, 469 So.2d 670 (Ala.Cr.App.1984), and certiorari was denied.

Shute petitioned for post-conviction relief, pursuant to Rule 20, A.R.Crim.P. Temp., in January, 1989. He claimed that he was unlawfully sentenced under the Habitual Felony Offender Act to 99 years. The petition was denied, hence this appeal.

The appellant contends that he is due to be resentenced on the basis of the principle enunciated in Ex parte Chambers, 522 So.2d 313 (Ala.1987). He had five prior drug convictions and was sentenced to 99 years under the Habitual Felony Offender Act. It is clear, however, that he could have been sentenced only under the Controlled Substances Act. The state concedes this in its brief and requests that this case be remanded for a new sentencing proceeding in accordance with § 20-2-76, Code of Alabama 1975.

On the motion, therefore, of both the appellant and the appellee, the present sentence in this case is set aside and this case is remanded to the circuit court for resen-tencing.

REMANDED FOR RESENTENCING.

All the Judges concur.

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555 So. 2d 273, 1989 Ala. Crim. App. LEXIS 675, 1989 WL 112195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shute-v-state-alacrimapp-1989.

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